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Does Indiana Constitution contain a right to privacy, abortion? - The Times of Northwest Indiana

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Seventeen years ago the Indiana Supreme Court dodged the question of whether the Indiana Constitution contains a right to privacy, and correspondingly, the right of a woman to choose to continue or terminate her pregnancy.

It appears likely, however, the Indiana high court's five Republican-appointed justices won't be able to escape that issue again this year.

On Thursday, Judge Kelsey Hanlon, a Republican from southern Indiana's Owen County, halted enforcement of the state's near-total abortion ban, enacted in August by the Republican-controlled General Assembly and Republican Gov. Eric Holcomb, in part because she said it materially burdens liberties guaranteed by the Indiana Constitution.

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Specifically, Hanlon pointed to Article I, Section 1 of the Indiana Constitution and its declaration that all people have "certain inalienable rights," that "among these are life, liberty and the pursuit of happiness," and that government exists for the "peace, safety and well-being" of the people.

"Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term — are included in Article I, Section 1's protections," Hanlon said.

Pro-life and pro-choice protesters take to the Porter County Courthouse lawn in Valparaiso.

Republican Attorney General Todd Rokita, a Munster native, immediately pledged to appeal Hanlon's preliminary injunction in the hope of restoring Senate Enrolled Act 1, which he sees as just the beginning of new abortion restrictions in the Hoosier State following the June 24 Dobbs v. Jackson ruling of the U.S. Supreme Court that repealed the federal right to abortion established by its 1973 Roe v. Wade decision.

The Indiana law, which initially took effect Sept. 15, prohibited all abortions in the state from the moment of conception, except within 10 weeks of fertilization for pregnancies caused by rape or incest, or 20 weeks if necessary to prevent serious physical impairment or the death of a pregnant woman, or because of a lethal fetal anomaly.

It also attempted to shut down all abortion clinics in the state by requiring every abortion be completed in a hospital or hospital-owned surgical center, and put doctors at risk of losing their medical license if they failed to sufficiently justify the legal basis for an abortion.

"We plan to appeal and continue to make the case for life in Indiana. Our office remains determined to fight for the lives of the unborn, and this law provides a reasonable way to begin doing that," Rokita said.

This exact issue landed at the Indiana Supreme Court in 2005 after the Indiana Court of Appeals, in an opinion written by Judge Nancy Vaidik, a Porter County native, unequivocally said Article I, Section 1 of the Constitution establishes a right to privacy that extends to all Indiana citizens, including women seeking to obtain an abortion.

"While we need not decide today precisely what the right to privacy — or the substantive content of Article I, Section 1, animated by the core value of privacy — encompasses, we have no doubt that it extends to the right to make decisions about our health and the integrity of our minds and bodies," Vaidik said.

"Included within the protection of the right to make decisions about our health care and the integrity of our minds and bodies is the decision to terminate pregnancy," she added.

Deciding not to decide

At the Supreme Court in 2005 a majority of the justices, none of whom remain on the high court, set aside the Court of Appeals ruling and decided they didn't need to resolve the question of whether the Constitution includes a right to privacy in order to uphold a state law imposing an 18-hour waiting period to terminate a pregnancy, and thereby compelling Hoosier women seeking an abortion to make two separate trips to a clinic.

Justice Robert Rucker, a Gary native, said the court found it "unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana’s Constitution" because, in part, the challenged statute "would not impermissibly impinge upon any right to privacy or right to abortion that might exist."

That normally would have been the last word on the matter, except Republican-appointed Justice Brent Dickson, a Hobart native, and Democratic-appointed Justice Theodore Boehm each wrote lengthy supplemental opinions focused on privacy and the Indiana Constitution.

Dickson said in his opinion concurring in the Supreme Court's judgment that he believed the high court should "explicitly declare that the Indiana Constitution does not protect any alleged right to abortion."

He said it's "inconceivable" the framers of the 1851 Indiana Constitution intended to create a right to abortion, since abortion had been criminalized in Indiana since 1835 and remained a crime, punishable by up to 1 year in jail and a $500 fine, long after the Constitution was adopted.

"Even if we were to imagine that our framers and ratifiers intended Section 1 to protect some aspect of individual privacy, it is historically and logically unacceptable to suppose that they designed such protection for the purpose of assuring a right to abortion," Dickson said.

Moreover, Dickson said Article I, Section 1 of the Constitution expressly recognizes an inalienable right to "life," and he said, "every decision to terminate a pregnancy denies this right to an unborn child."

"I believe that the core values of Section 1 do not include the alleged right to abortion, and thus the state's constitutional responsibility and authority to provide for safety and public welfare in matters related to abortion remain undiminished," Dickson said.

In contrast, Boehm pointed out in his dissenting opinion that just four years after ratification of the Constitution the Indiana Supreme Court in 1855 used the liberty guarantees of Article I, Section 1 to identify a right for each Hoosier to choose what he or she will eat and drink free from government interference.

Riding Shotgun/DNR Conservation Officer Tyler Brock

He said that while most litigation on such issues subsequently shifted to federal courts when the 14th Amendment was adopted after the Civil War, Indiana's protections for individual liberty remain in the Constitution and evolve with the times because life, liberty and the pursuit of happiness only are "among" the rights guaranteed by Article I, Section 1.

"The Indiana Constitution insulates some areas of human activity and guarantees that they are free from interference by the Legislature," Boehm said. "The consequences of individual decisions of whom to marry, whether to have a child, and whether to carry a nonviable fetus to term are exclusively, or at least overwhelmingly, personal."

"To be sure, the sensibilities of some may be offended by the choices of others in selecting a spouse, or a married couple’s decision to use or forego contraceptives. But that result is largely due to the varied attitudes towards these matters that are grounded in individual philosophies and religions. Government has no role in seeking to take sides in those debates over matters of conscience. Indeed the Constitution is explicit on this point: 'No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience,'" he added.

Notably, a separate lawsuit claiming Senate Enrolled Act 1 runs afoul of Indiana's Religious Freedom Restoration Act is scheduled for review next month by an Indianapolis trial court.

There currently is no timeline for appellate action on the constitutional challenge to Indiana's near-total abortion ban.

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Does Indiana Constitution contain a right to privacy, abortion? - The Times of Northwest Indiana
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